Central Administrative Tribunal - Delhi
Giri Raj Sharma vs Municipal Corporation Of Delhi on 28 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 3702/2009 New Delhi this the 28th day of April, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. Giri Raj Sharma, Head Master/Principal M.C.D. Primary School, Qutub Vihar, New Delhi. 2. Shri Bhim Singh Dabas, Retired Head Master/Principal M.C.D. Primary School, Savda Gheora, J.J. Colony, F-Block, New Delhi R/o H.No. 11, Nangloi Extn. New Delhi-42. Dulichand, Head Master/Principal M.C.D Primary School, Nangli, Sakrawati-I, Nazafgarh Zone, New Delhi. 4. Raj Mal, Head Master/Principal Gopal Nagar-II M.C.D. Primary School, New Delhi. 5. Braj Mohan Sharma, Head Master/ Principal MCD Primary School, New Roshan Pura-II, New Delhi. 6. Harswaroop, Head Master/Principal M.C.D. Primary Boys School, Chhawla, New Delhi. 7. Randhir Singh Dabas, Head Master/ Principal, MCD Primary School (Boys), Kakrola, New Delhi. 8. Gopi Chand Kamshik, Head Master/ Principal, MCD Primary School, Nazfgarh-II, New Delhi. 9. Smt. Krishna Devi, Head Master/ Principal, MCD Primary School, Mitraon Village, New Delhi. 10. Krishna Devi, Head Master/ Principal, MCD Primary School, Kakrola-1, New Delhi. 11. Smt. Sulekha Mehta, Head Master/ Principal, Sagarpur West-I, New Delhi. 12. Shri Karandhar, Head Master/Principal M.C.D. Primary School, Nazafgarh No.3, New Delhi. 13. Krishna Devi, Head Master/ Principal, MCD Primary School, Paprawat, New Delhi. 14. Prem Singh Lakra, Ex-Head Master/Principal, MCD Primary School, Nangloi Main/II, New Delhi. 15. Yad Ram Nandal (Retired), Head Master/Principal, MCD, Primary School, Mahavir Enclave IInd & IIIrd, New Delhi. 16. Manmohan Lal (Head Master), MCD Primary School, Dichaun Kalam, New Delhi. 17. Saroop Singh, H.M. MCD Primary School, Mudhela Kurd, Nazafgarh Zone, Delhi. Applicants. (By Advocate Shri Alok Shanker proxy for Shri Ranjit Sharma) VERSUS 1. Municipal Corporation of Delhi, Through the Commissioner at Town Hall, Chandni Chowk, Delhi. 2. The Director of Education (Primary), Old Hindu College, Kashmiri Gate, Delhi. Respondents. (By Advocate Shri K.M. Singh) O R D E R Shri Shanker Raju, Member (J):
MA 2609/2009 M.A. for joining together in a single application is allowed.
O.A. 3702/2009Applicants, seventeen in number, having retired as Head Masters/Principals of MCD Primary Schools, seek automatic re-employment, in terms of Office Order of the Municipal Corporation of Delhi (MCD) dated 26.06.2008. It is no more res integra that the MCD vide its Urgent Business No. 184 passed a Resolution regarding automatic re-employment of all retiring teachers upto PGT level till they attain the age of 62 years and had adopted Directorate of Education, Govt. of NCT, Delhi Resolutions dated 28.02.2007 and 28.03.2007 in view of Resolution No. 61 of the Education Department dated 21.08.2007. The denial of re-employment to the applicants, who have retired as Head Masters/Principals of the MCD Primary Schools, as reflected from the reply, is on the ground that at par with Govt. of NCT of Delhi where Principals and Vice Principals, who had gone beyond PGT level not being considered as teachers, the same mutatis mutandis has been adopted by the MCD. It is also stated that the Head Masters or Head of the Schools are designated through Resolution as Principals and are holding academic-cum-administrative posts. It is stated that the Head Master is in-charge of the school and where there are less than ten sections, the Head Master is taking classes but when transferred to a school where there are more than ten sections, he is not bound to take full classes at all. It is in this backdrop stated that the applicants, who supervise the work and write ACRs of Assistant Teachers, cannot be equated with the posts of Head Masters. Learned counsel for the applicants to this stated that the applicants, who retired as Head Masters, despite having acquired TGT skills, cannot be divested of the status of teachers. According to the counsel, the erstwhile pay scale before the sixth CPC suggests that Head Masters were in the scale of Rs.5500-9000 which has been upgraded to PB-2 in Rs.8000-13500 whereas Vice Principals were in the higher scale, as such it is contended that denial of re-employment to the applicants, even, according to the Govt. of NCT of Delhi Notification, is not apt in law.
2. On the other hand, counsel for the respondents relies upon the decision in a case of Vice Principal in Govt. of NCT of Delhi, Rajbir Singh Kadian Vs. Govt. of NCT of Delhi (OA 2659/2009), decided on 25.01.2010, and also in OA 2212/2009, Chhajju Ram Vs. Govt. of NCT of Delhi & Ors., decided on 29.01.2010 to buttress his plea.
3. We have carefully considered the rival contentions of the parties and perused the materials on record.
4. When administrative authority acts, there has to be fairness and reasonableness in their action. Discretion vested has to be exercised judicially, as ruled in Angad Das Vs. Union of India & Ors. (2010 (3) SCC 463). Whenever a Notification is adopted within the competence of Resolution by the MCD pertaining to Govt. of NCT of Delhi, whatever has been laid down as a policy decision has to be mutatis mutandis adopted with all its functional requirements, parameters and no exception or deviation is to be made. The Govt. of NCT of Delhi, on a Notification by the Lt. Governor on 29.01.2007 in view of Cabinet Decision No. 1113 of 04.09.2006 allowed automatic retirement of retiring teachers upto PGT level, subject to certain conditions till they attain the age of 62 years. From the perusal of the conditions, as appended by the MCD, the order dated 28.03.2007 allows retiring teachers for re-employment, subject to fitness and vigilance clearance and a Notification of Govt. of NCT issued in the form of Circular dated 29.05.2007 regarding pay fixation of re-employed teachers, illustrated by examples, the case of a TGT drawing the pay in the scale of Rs.5500-9000 and a PGT drawing the pay in the scale of Rs.6500-10500 to be re-employed. In the above view of the matter, a teacher as per Delhi Education Act includes Head of the School but basically a teacher is one who is teaching. It is not the stand of the respondents that Head Master is not a teacher but the sand is that apart from selectively taking classes, he also as the Head Master functions on administrative side which is reflected from the Preliminary Objection No. 2. In the above view of the matter, despite designation and nomenclature of Principal/Head Master, basically the applicants are getting the pay scale which is equal to a Trained Graduate Teacher in Govt. of NCT, Delhi i.e. Rs.5500-9000, which is not disputed. If it is so, the very purpose of granting re-employment by the Govt. of NCT to their teachers and restricting to the PGT level cannot be read in isolation of the pay scale attached to the post of TGT as well as PGT. Apart from the clear Notification of Graduation and Post Graduation, one earns promotion as TGT and PGT in Govt. of NCT of Delhi and by virtue of this promotion, the pay scales are enhanced in the hierarchy. Vice Principals and Principal have been excluded because that they do not come within the PGT level and their pay scales have been enhanced and also it may be an ancillary ground of their not working as teachers. However, in the case of MCD, it is not denied that the applicants, even they had retired as Head Masters, while working had not taken classes or had not worked as teachers, the stipulation that where there are more than ten sections, the classes are not taken full and in less than ten sections the Head Masters are directed to attend classes, leaves no doubt in our mind that while working as Head Masters, the basic eligibility and functioning of the Head Master being a teacher is performed by the applicants till they retired on attaining the age of retirement on superannuation. In such view of the matter, having not reached at the PGT level, they cannot be denied the benefit of Govt. of NCT resolution merely because their incidental working is on the administrative side.
5. One of the contentions put forth that the applicants are not performing the work exclusively as teachers is misconceived as what is required by the Govt. of NCT Notification is that a teacher who retired below the PGT level, cannot be denied re-employment and it does not preclude a teacher performing administrative duties. Such a restricted interpretation on a policy based on welfare has to be construed on the interpretation given by us in favour of the applicants.
6. The decision cited of Lab Assistants in Chhajju Singhs case (supra) who have sought the benefit of automatic re-employment as per Notification of Govt. of NCT of Delhi, dated 29.01.2007 would have no application in the instant case and in Rajbir Singh Kadians case (supra) though it concerned Govt. of NCT of Delhi yet the facts are different where Vice Principal in Govt. of NCT working above the scale of PGT as such was not included in the scheme of re-employment.
7. Equality before law is a positive concept under Article 14 of the Constitution of India. Discriminating the applicants and denying them the benefit of re-employment without any intelligible differentia which has no reasonable nexus with the object sought to be achieved certainly offends Articles 14 and 16 of the Constitution of India.
8. Resultantly, the action of the respondents in denying the re-employment to the applicants cannot be sustained in law. O.A. is allowed. Respondents are directed to forthwith offer automatic re-employment to the applicants, in terms of Office Order dated 26.06.2008 on receipt of a copy of this order. No costs.
( Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) `SRD